An Executive Branch Assault on the Constitution

The Bush Administration's Department of Defense is examining whether it has the power to break a strike at tire plants that supply the military.

The Constitution affords the executive branch no such authority. But, as should be obvious by now, the current Administration has little regard for the founding document.

"The US Army is considering measures to force striking workers back to their jobs at a Goodyear Tire & Rubber plant in Kansas in the face of a looming shortage of tires for Humvee trucks and other military equipment used in Iraq and Afghanistan," reported the Financial Times on December 15. "A strike involving 17,000 members of the United Steelworkers union has crippled 16 Goodyear plants in the US and Canada since October 5."

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December 17, 2006

The Bush Administration’s Department of Defense is examining whether it has the power to break a strike at tire plants that supply the military.

The Constitution affords the executive branch no such authority. But, as should be obvious by now, the current Administration has little regard for the founding document.

“The US Army is considering measures to force striking workers back to their jobs at a Goodyear Tire & Rubber plant in Kansas in the face of a looming shortage of tires for Humvee trucks and other military equipment used in Iraq and Afghanistan,” reported the Financial Times on December 15. “A strike involving 17,000 members of the United Steelworkers union has crippled 16 Goodyear plants in the US and Canada since October 5.”

This is no small matter, as a similar dispute in the early 1950s provoked one of the most significant constitutional crises of modern times.

In April 1952, when a dispute between the nation’s steel companies and the United Steel Workers of America union threatened to disrupt production at more than eighty steel mills, President Harry Truman issued an executive order that the plants be seized.

The President argued that he had the power to do so because the country was engaged in the Korean War, claiming that he acted “by virtue of the authority vested in me by the Constitution and the laws of the United States, and as President of the United States and Commander-in-Chief of the armed forces of the United States.”

Truman had an expansive view of executive powers during wartime, as was evidenced during his April 17, 1952, press conference, where a reporter asked: “Mr. President, if you can seize the steel mills under your inherent powers, can you, in your opinion, also seize the newspapers and, or, the radio stations?”

“Under similar circumstances,” claimed Truman, “the President of the United States has to act for whatever is for the best of the country. That’s the answer to your question.”

In fact, Truman was wrong on both political and constitutional grounds. As with the current Iraq and Afghanistan conflicts, the Korean fight had been entered into without a declaration of war by Congress–the bloody conflict was described vaguely as a “police action.” Even if a declaration of war had been made, there was little reason to believe that Truman had the authority that he said was his. Without such a declaration, there was no question that he was claiming powers that were not his to exercise.

Republican members of Congress, led by Ohioan George Bender, moved to impeach Truman. Bender declared, “I do not believe that our people can tolerate the formation of a presidential precedent which would permit any occupant of the White House to exercise his untrammeled discretion to take over the industry, communications system or other forms of private enterprise in the name of ’emergency.'”

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The articles of impeachment against Truman that were submitted by Bender drew national attention, and support from publications such as the Chicago Tribune. As the drive picked up steam–with Illinois Senator Everett McKinley Dirksen telling a national radio audience that Congress had a responsibility to act–the Supreme Court quickly announced that it would take up the matter.

A court consisting of Justices appointed by Truman and his Democratic predecessor, Franklin Delano Roosevelt, forced Truman to back down. The ruling in Youngstown Sheet & Tube Co. v. Sawyer (1952) explicitly restricted the authority of the President to seize private property in the absence of either specifically enumerated powers under Article Two of the Constitution or statutory authority approved by the Congress.

“The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times,” Justice Hugo Black wrote, on behalf of the court’s majority. “It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.”

In his brilliant concurrence, Justice Felix Frankfurter wrote, “A constitutional democracy like ours is perhaps the most difficult of man’s social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale. The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches nothing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power, if a society is to be at once cohesive and civilized, but also on the need for limitations on the power of governors over the governed. To that end they rested the structure of our central government on the system of checks and balances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity.”

Noting the recent struggle against German fascism, Frankfurter argued that the wisdom of the Founders had been confirmed. “Not so long ago it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded–too easy,” the Justice explained. “The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power…. The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

Frankfurter’s words ring true across history to address the current circumstance, as do those of George Bender and the members of the House whose move to impeach Truman highlighted the need for judicial intervention: “our people [cannot] tolerate the formation of a presidential precedent which would permit any occupant of the White House to exercise his untrammeled discretion to take over the industry, communications system or other forms of private enterprise in the name of ’emergency.'”

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John Nichols’ new book, THE GENIUS OF IMPEACHMENT: The Founders’ Cure for Royalism has been hailed by authors and historians Gore Vidal, Studs Terkel and Howard Zinn for its meticulous research into the intentions of the founders and embraced by activists for its groundbreaking arguments on behalf of presidential accountability. After reviewing recent books on impeachment, Rolling Stone political writer Tim Dickinson, writes in the latest issue of Mother Jones, “John Nichols’ nervy, acerbic, passionately argued history-cum-polemic, The Genius of Impeachment, stands apart. It concerns itself far less with the particulars of the legal case against Bush and Cheney, and instead combines a rich examination of the parliamentary roots and past use of the “heroic medicine” that is impeachment with a call for Democratic leaders to ‘reclaim and reuse the most vital tool handed to us by the founders for the defense of our most basic liberties.'”

The Genius of Impeachment can be found at independent bookstores and at www.amazon.com